Court Says Anti-Malware Software Maker Immune From Lawsuit From Zango

from the thank-you-section-230 dept

Infamous adware maker Zango may finally be dead, but its lawsuits live on. You may recall a few years back Zango sued security software maker Kaspersky for calling its product "spyware." A court found that Kaspersky has every right to label the software as it feels is appropriate, noting that it's immune from complaints from Zango under section 230 of the CDA.

Zango appealed, claiming that Kaspersky shouldn't be immune because the CDA was only supposed to apply to websites, not software makers. The 9th circuit appeals court clearly disagrees and points out that this is exactly the sort of thing Section 230 should protect. It's always nice to see courts reaffirm the immunity granted by Section 230 -- especially since those protections have been under attack lately. Update: Eric Goldman has more.

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I think the ruling is correct but shouldn't be based on 230.

Zango has in the past paid fines to the FTC for using what were judged to be very poor installation methods (viral like). Further, Zango never really clearly spelled out all of the implication of their "service" to end users. Finally, users would trade a 1 minute video view for a lifetime of slavery to the Zango software, with no easy way to remove it (the uninstall was never truly complete).

As Zango reported all user activity back to it's hive mind, it could be considered spyware, particularly by people who might of thought it only ran when they were on a zango site watching videos, example.

In the end, the end user asked to put Zango on their machine (it is the Zango standard defence) and the same end user asked software to remove it. They can't have it only their way.

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"It creates a safe harbor of sorts for ISPs and hosting providers who remove content, without in theory turning them into publishers (although it does have significant limits)."

I disagree, I do not think the law should be intended to protect people who censor information from the public (especially potentially valuable information). That would be against the public good. If it is referring to such things then the law should be changed.

"This act was passed to specifically enhance service providers' ability to delete or otherwise monitor content without themselves becoming publishers"

As far as the court using the word "service provider" notice the reason.

"Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect."

Even the court itself does not use the word ISP's. The exact purpose of the bill is to prevent the restriction of "the number and type of messages posted."

An ISP censoring information from its users does NOT serve this purpose. Taking out a bunch of irrelevant sights to a search query (perhaps because someone "google bombed" it or whatever) without facing liability does. It does not censor the site itself, for I can still find it through other means (ie: someone can post it via a message board or even here on techdirt, I can go to another search engine, or I can find another search term).

The act also allows a provider to filter "content" that is considered "objectionable". If Kaspersky considers spyware objectionable they have a right to have their software filter it. The point here is that if I don't like Kaspersky filtering it I can choose a different antivirus. So the purpose of the bill is not defeated. If an ISP does it it would defeat the purpose of the bill because censoring info at the ISP level (especially since there is VERY LITTLE ISP competition in the U.S.) would "severely restrict the number and type of messages posted." Doing so at the search engine level or at the level of an antivirus does no such ting since people have relatively little to lose by switching antiviruses or search engines in comparison to ISP's.

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much of it comes down to, "was it solicited or not." If I download kaspersky and it blocks spyware, that's fine because I actively downloaded kaspersky voluntarily. It was solicited. If I search through a search engine for the word "computer tech" and I get a website that advertises "buy trees from me" clearly that site was not solicited. So google has a right to block it. Kaspersky has a right to block unsolocited spyware, for Kaspersky itself was solicited and, as such, I very well may have downloaded it because it blocks unsolocited spyware. If I don't like it then I don't have to download Kaspserky. My ISP, on the other hand, has no right to block solicited free speech. If I look for the words, "criticisms of (insert name of my ISP here)" and the ISP blocks it, that's uncalled for because those criticisms were solicited.

Kaspersky is a great antivirus and while I don't pay for an antivirus (when I need an antivirus I use a free one like AVG or clamwin but I hardly ever use an antivirus anyway) if I were to recommend a non free antivirus Kaspersky is the only one I would recommend.

Zango

I read somewhere that Zango is the same company as "180 Solutions", the infamous company that put spyware and adware on just about every ones computers a few years ago. I had to take it off a kids computer a few days ago, he did not know what Zango was.

Kaspersky and Spyware Blocking

I do not use Kaspersky and thus do not know how it acts when it encounters something that it regards as Spyware.

Here is my view however.

First, as noted up-thread, the user must take a positive action to install it. Thus there is informed consent (unlike Zango which does a stealth install).

Second, if I ask Kaspersky to unistall, it will, and the resulting system status is the same as if I had never installed Kaspersky in the first place (again unlike Zango whose installer does not fully clean up the system and leaves some code still running even after the user says to delete the program).

Finally, and very important, I assume that when it detects what it classifies as Spyware, it INFORMS the user and offers the option of either blocking or allowing that "Spyware" program to run. IOW: While it has a database of Spyware programs, that database can be overridden so Kaspersky does not have the last say but allows the user once informed to tell Kaspersky to not block the program.

To me so long as Kaspersky does not take unilateral action but just offers the block the program, Zango has no gripe beyond being labled as Spyware since Kaspersky can allow the program to run if asked to by the user.

Ha, Imagine that. A company that is known for nothing but being a nuisance that nobody wants on their PC, is actually trying to sue for what amounts to defamation. Suing because they were called spyware? They ARE spyware verging on what I would consider malware due to the fact that their 'service' hogs up massive CPU cycles. I am glad they are no longer making money.